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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6
JUSTIN MICHAEL WOLFE,
Petitioner – Appellee,
v.
HAROLD
W.
CLARKE,
Corrections,
Director,
Virginia
Department
of
Respondent – Appellant.
-----------------------------WILLIAM G. BASSLER; ROBERT C. BUNDY; A. BATES BUTLER, III;
W. J. MICHAEL CODY; J. JOSEPH CURRAN, JR.; ROBERT J. DEL
TUFO; W. THOMAS DILLARD; CONOR B. DUGAN; JOHN R. DUNNE;
MATTHEW W. FRIEDRICH; BENNETT L. GERSHMAN; JOHN GIBBONS;
ISABEL GOMEZ; STEWART HANCOCK; BRUCE R. JACOB; GERALD KOGAN;
THOMAS D. LAMBROS; DAVID W. OGDEN; STEPHEN M. ORLOFSKY;
STEPHANIE K. PELL; H. JAMES PICKERSTEIN; RICHARD J. POCKER;
CHRISTOPHER S. RHEE; JEANNIE S. RHEE; H. LEE SAROKIN; HARRY
L. SHORSTEIN; GIL M. SOFFER; THOMAS P. SULLIVAN; RICHARD S.
UGELOW; JAMES K. VINES; ATLEE W. WAMPLER, III; JAMES WEST;
ALFRED WOLIN; WILLIAM YEOMANS,
Amici Supporting Appellee.
No. 11-7
JUSTIN MICHAEL WOLFE,
Petitioner – Appellant,
v.
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HAROLD
W.
CLARKE,
Corrections,
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Director,
Virginia
Department
of
Respondent – Appellee.
-----------------------------WILLIAM G. BASSLER; ROBERT C. BUNDY; A. BATES BUTLER, III;
W. J. MICHAEL CODY; J. JOSEPH CURRAN, JR.; ROBERT J. DEL
TUFO; W. THOMAS DILLARD; CONOR B. DUGAN; JOHN R. DUNNE;
MATTHEW W. FRIEDRICH; BENNETT L. GERSHMAN; JOHN GIBBONS;
ISABEL GOMEZ; STEWART HANCOCK; BRUCE R. JACOB; GERALD KOGAN;
THOMAS D. LAMBROS; DAVID W. OGDEN; STEPHEN M. ORLOFSKY;
STEPHANIE K. PELL; H. JAMES PICKERSTEIN; RICHARD J. POCKER;
CHRISTOPHER S. RHEE; JEANNIE S. RHEE; H. LEE SAROKIN; HARRY
L. SHORSTEIN; GIL M. SOFFER; THOMAS P. SULLIVAN; RICHARD S.
UGELOW; JAMES K. VINES; ATLEE W. WAMPLER, III; JAMES WEST;
ALFRED WOLIN; WILLIAM YEOMANS,
Amici Supporting Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:05-cv-00432-RAJ-DEM)
Argued:
May 17, 2012
Decided:
August 16, 2012
Before KING, DUNCAN, and THACKER, Circuit Judges.
Affirmed by published opinion.
which Judge Thacker joined.
opinion dissenting in part.
Judge King wrote the opinion, in
Judge Duncan wrote a separate
ARGUED:
Katherine Baldwin Burnett, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant/CrossAppellee.
Ashley Charles Parrish, KING & SPALDING, LLP,
Washington, D.C., for Appellee/Cross-Appellant.
ON BRIEF:
Kenneth T. Cuccinelli, II, Attorney General of Virginia, Matthew
P. Dullaghan, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY
GENERAL
OF
VIRGINIA,
Richmond,
Virginia,
for
Appellant/Cross-Appellee.
Michele J. Brace, VIRGINIA CAPITAL
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REPRESENTATION
RESOURCE
CENTER,
Charlottesville,
Virginia;
Daniel J. King, KING & SPALDING, LLP, Atlanta, Georgia; Matthew
S. Owen, KING & SPALDING, LLP, Houston, Texas; Jane C. Luxton,
PEPPER HAMILTON LLP, Washington, D.C.; Matthew L. Engle, Deirdre
M. Enright, THE INNOCENCE PROJECT AT UVA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellee/Cross-Appellant.
John
P. Elwood, VINSON & ELKINS LLP, Washington, D.C.; Michael A.
Heidler, VINSON & ELKINS LLP, Austin, Texas, for Amici
Supporting Appellee/Cross-Appellant.
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KING, Circuit Judge:
This matter was previously before us on appeal by 28 U.S.C.
§ 2254 petitioner Justin Michael Wolfe, a Virginia prisoner who
was convicted of capital murder and sentenced to death by the
Commonwealth in 2002.
By our decision of May 11, 2009, see
Wolfe v. Johnson, 565 F.3d 140 (4th Cir. 2009) (“Wolfe I”), we
remanded
for
further
proceedings.
Specifically,
Wolfe
I
instructed the district court to determine whether Wolfe was
entitled
to
an
evidentiary
hearing
and
other
discovery;
to
decide in the first instance whether, under Schlup v. Delo, 513
U.S. 298 (1995), Wolfe had made a sufficient showing of actual
innocence to clear any procedural bars to his constitutional
claims (the “Schlup issue”); and to assess anew Wolfe’s claim,
among
others,
that
the
prosecution
had
contravened
his
Fourteenth Amendment due process rights, as recognized in Brady
v. Maryland, 373 U.S. 83 (1963), by suppressing favorable and
material evidence (the “Brady claim”).
On remand, the district court heeded our Wolfe I mandate,
authorized
appropriate
discovery
and
conducted
an
evidentiary
hearing, and ruled in Wolfe’s favor on the Schlup issue and his
Brady and two additional claims.
2011,
the
court
vacated
By its judgment of August 30,
Wolfe’s
capital
murder
and
other
convictions, and ordered the Commonwealth to either retry him
within 120 days or release him unconditionally from custody.
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The judgment was stayed pending this appeal by the Commonwealth,
which
was
initiated
on
its
behalf
by
respondent
Harold
Clarke, Director of the Virginia Department of Corrections. 1
Commonwealth
challenges
finish,
contending
that
fatally
erred
its
in
the
remand
the
proceedings
district
procedural
and
court
from
start
repeatedly
substantive
W.
The
to
and
rulings.
Because we readily conclude, however, that the court’s award of
habeas corpus relief on Wolfe’s Brady claim was not marred by
any error, we affirm the judgment.
I.
A.
As more fully detailed in our Wolfe I decision, a Prince
William
County
murder,
using
jury
a
found
firearm
in
Wolfe
the
guilty
commission
conspiring to distribute marijuana.
149.
in
2002
of
a
of
capital
felony,
and
See Wolfe I, 565 F.3d at
The trial court sentenced Wolfe to death for the murder,
plus consecutive terms of three years for the firearm offense
and thirty years for the drug conspiracy.
Id.
The murder
conviction was premised on evidence that Wolfe, then a nineteenyear-old marijuana dealer in northern Virginia, hired his close
1
Clarke has served as Director of the Virginia Department
of Corrections since 2010, when he replaced former respondent
Gene M. Johnson.
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friend and fellow drug dealer Owen Barber IV to murder drug
supplier Daniel Petrole in March 2001.
(explaining
that
“Virginia
defines
Id. at 144-45 & n.2
‘capital
murder,’
in
pertinent part, as ‘[t]he willful, deliberate, and premeditated
killing of any person by another for hire’” (quoting Va. Code
Ann.
§ 18.2-31(2))).
Significantly,
“Barber
was
the
prosecution’s key witness,” in that he was “the only witness to
provide any direct evidence regarding the ‘for hire’ element of
the murder offense and the involvement of Wolfe therein.”
at 144.
Id.
In exchange for Barber’s testimony that he was Wolfe’s
hired triggerman, the Commonwealth dismissed its capital murder
charge
murder.
against
Barber,
and
he
pleaded
guilty
to
non-capital
Barber was sentenced to sixty years in prison, of which
twenty-two years were suspended.
Id. at 144 n.1.
In November 2005, after failing to obtain relief from his
convictions
on
direct
appeal
and
in
state
habeas
corpus
proceedings, Wolfe filed his initial 28 U.S.C. § 2254 petition
in the district court.
See Wolfe I, 565 F.3d at 149-51.
It was
only thereafter, on December 14, 2005, that Barber executed an
affidavit repudiating his trial testimony and exculpating Wolfe
from the murder-for-hire scheme.
Id. at 144, 151.
Within a
single day, Wolfe filed an amended § 2254 petition, along with
an
appendix
affidavits
of
supporting
corroborating
the
materials,
Barber
6
including
affidavit
and
additional
suggesting
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that the prosecution had suppressed evidence that should have
been
disclosed
to
the
defense.
Id.
at
151.
The
amended
petition raised, inter alia, the Schlup actual innocence issue,
thereby
asserting
default
of
asserted
a
Wolfe’s
first
second
constitutional
ground
prejudice” standard.
ground
having
to
excuse
any
procedural
—
the
previously
claims
been
the
separate
Id. at 154, 158 & n.27.
“cause
and
In April 2006,
while the amended petition and related procedural issues were
pending before the magistrate judge, Wolfe notified the court
that
Barber
sought
to
repudiate
affidavit exculpating Wolfe.
with
that
notice,
Wolfe’s
the
statements
Id. at 155-56.
lawyers
in
his
2005
In conjunction
requested
an
evidentiary
hearing to resolve credibility issues, plus discovery into the
prosecution’s compliance with its Brady obligations.
Id. at
156.
In August 2007, the magistrate judge issued his report,
rejecting Wolfe’s request for an evidentiary hearing, deeming
the
Barber
and
other
affidavits
to
lack
credibility,
and
recommending the dismissal of Wolfe’s amended petition on the
ground that the claims asserted therein were meritless, had been
procedurally defaulted, or both.
n.25.
See Wolfe I, 565 F.3d at 156 &
Although Wolfe spelled out a lengthy series of objections
to the magistrate judge’s report, the district court, by its
decision of February 11, 2008, adopted the report as its own and
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dismissed Wolfe’s petition.
alia,
that
the
“considered
court
(and
did
Pg: 8 of 40
Id. at 158-59 (explaining, inter
not
rejected)
address
Wolfe’s
the
Schlup
contention
issue,
but
that
his
procedural defaults were excused under the cause and prejudice
standard” (internal quotation marks omitted)).
After the court
declined to alter or amend its decision, we granted Wolfe a 28
U.S.C. § 2253(c) certificate of appealability on his Brady and
three other claims.
Id. at 159.
And, as explained above, we
ultimately remanded with instructions for the court to determine
Wolfe’s
entitlement
to
an
evidentiary
hearing
and
other
discovery, to decide the Schlup issue in the first instance, and
to freshly assess the Brady and two additional claims.
171.
Id. at
We also advised the court that it was free to revisit its
cause and prejudice ruling.
Id. at 165 n.35.
B.
Without
prejudice
explicitly
ruling,
the
reconsidering
district
court
its
prior
decided
the
cause
and
procedural
Schlup issue early in the remand proceedings, by its opinion and
order of February 4, 2010.
See Wolfe v. Clarke, No. 2:05-cv-
00432 (E.D. Va. Feb. 4, 2010) (the “Schlup Order”). 2
The court
therein determined, largely on the existing Wolfe I record, that
2
The Schlup Order is found at J.A. 3266-78.
(Citations
herein to “J.A. __” refer to the contents of the Joint Appendix
filed by the parties in these appellate proceedings.)
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Owen Barber’s (subsequently disavowed) recantation of his trial
testimony was sufficiently corroborated to “raise doubt in a
reasonable juror’s mind about the circumstances of the night of
the
[Daniel
Petrole]
murder.”
Schlup
Order
10.
Indeed
—
weighing the “two stories of what occurred on the night of the
murder, both with hearsay corroboration[,] and almost no other
evidence that would support one version over another” — the
court
concluded
that
reasonable
juror
reasonable
doubt.”
it
was
would
have
Id.
“more
found
(applying
likely
than
Wolfe
Schlup,
not
guilty
513
that
beyond
U.S.
at
no
a
327
(requiring petitioner to “show that it is more likely than not
that no reasonable juror would have convicted him in the light
of the new evidence”)).
Accordingly, the court announced that
Wolfe had “met the Schlup standard,” thus justifying review of
the merits of his procedurally defaulted constitutional claims.
Id.
The court also granted Wolfe’s request for an evidentiary
hearing, as well as discovery.
Id. at 13.
During the contentious course of the discovery proceedings,
Wolfe
had
to
move
to
discovery obligations.
compel
the
Commonwealth
to
meet
its
A June 4, 2010 hearing on Wolfe’s motion
revealed, inter alia, that the Commonwealth had provided only
unsworn responses to the interrogatories it had answered, had
wholly
failed
refusing
to
to
respond
produce
to
other
approximately
9
interrogatories,
916
documents
and
was
that
it
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unilaterally deemed irrelevant.
By its order of June 7, 2010,
the district court directed the Commonwealth to provide sworn
responses to Wolfe’s interrogatories, including those previously
unanswered,
and
theretofore
to
allow
undisclosed
protective order.
Wolfe
to
documents,
examine
the
subject
hundreds
to
an
of
agreed
See Wolfe v. Clarke, No. 2:05-cv-00432 (E.D.
Va. June 7, 2010) (the “Discovery Order”). 3
To give Wolfe an
opportunity to assess the evidence that would be forthcoming
under the Discovery Order, the court was constrained to postpone
the impending evidentiary hearing.
The evidentiary hearing finally ensued late that autumn,
when it was conducted over the four days of November 2-3 and 1617, 2010.
On the second day of the hearing, in response to the
Commonwealth’s
evidence
in
objection
support
of
to
Wolfe’s
his
existing
use
Brady
of
newly
and
disclosed
other
claims,
Wolfe filed a motion to amend his 28 U.S.C. § 2254 petition.
See J.A. 4026-27 (arguing that the Commonwealth “has tenaciously
fought to deny Wolfe access to any facts that would have enabled
him
to
plead
additional
Brady
. . .
sub-claims,”
and
thus
“should not be rewarded for playing hide-the-ball” and “should
not be allowed to blame Wolfe for lacking the clairvoyance to
include these proposed amendments to his 2005 federal habeas
3
The Discovery Order is found at J.A. 3517.
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petition without the benefit of the withheld documents”).
By
its mid-hearing order of November 12, 2010, the district court
granted
Wolfe’s
motion
to
amend
“out
of
an
abundance
of
caution,” but found that “even in the absence of the [motion],
the issues [Wolfe] raises fall squarely within the [existing
Brady claim].”
See Wolfe v. Clarke, No. 2:05-cv-00432 (E.D. Va.
Nov. 12, 2010) (the “Amendment Order”). 4
Thereafter, by its opinion and order of July 26, 2011, the
court determined that Wolfe was entitled to habeas corpus relief
premised on, inter alia, the Commonwealth’s manifold violations
of his Brady rights.
See Wolfe v. Clarke, No. 2:05-cv-00432
(E.D. Va. July 26, 2011) (the “Brady Order”). 5
Specifically, the
court ruled in the Brady Order that the prosecution had withheld
eight
items
or
groups
of
favorable
falling into three broader categories:
and
material
evidence,
(1) evidence tending to
impeach triggerman Barber; (2) evidence tending to impeach other
prosecution witnesses who corroborated Barber’s testimony; and
(3)
evidence
murder.
his
an
alternate
theory
of
the
Petrole
The court also deemed Wolfe to be entitled to relief on
claim
4
suggesting
that
the
prosecution
knowingly
presented
false
The Amendment Order is found at J.A. 4059-60.
5
The Brady Order, which amended an earlier decision of July
12, 2011, is found at J.A. 5203-59 and published at 819 F. Supp.
2d 538 (E.D. Va. 2011).
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testimony
Filed: 08/16/2012
by
Barber,
in
Pg: 12 of 40
contravention
of
Wolfe’s
Fourteenth
Amendment due process rights under Napue v. Illinois, 360 U.S.
264 (1959), and Giglio v. United States, 405 U.S. 150 (1972)
(the “Giglio claim”), as well as his claim that the state trial
court deprived him of his rights under the Sixth and Fourteenth
Amendments
to
an
impartial
jury
by
striking
venireman for cause (the “venireman claim”).
a
qualified
Notably, the court
closed its Brady Order by specifying that Wolfe’s “conviction
and sentence” — both in the singular — were vacated.
See Brady
Order 57.
Wolfe timely filed a Federal Rule of Civil Procedure 59(e)
motion
to
court’s
alter
or
amend
clarification
the
that
judgment,
the
seeking
awarded
the
relief
district
encompassed
vacatur of not only his murder conviction and death sentence,
but also his convictions and sentences for using a firearm in
the
commission
marijuana.
of
a
felony
and
conspiring
distribute
The court granted Wolfe’s motion by its order of
August 30, 2011.
See Wolfe v. Clarke, No. 2:05-cv-00432 (E.D.
Va. Aug. 30, 2011) (the “Relief Order”).
therein
to
that,
“[i]n
light
of
[its]
The court clarified
finding
that
[Wolfe]
was
denied the right to due process during his state criminal trial,
[he]
is
entitled
to
a
new
trial
considered by the state court.”
day, the
judgment
was
amended
charges
previously
Relief Order 1-2.
That same
to
12
on
all
direct
the
Commonwealth
to
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retry Wolfe within 120 days or release him unconditionally.
See
Wolfe v. Clarke, No. 2:05-cv-00432 (E.D. Va. Aug. 30, 2011) (the
“Judgment”).
The Judgment was subsequently stayed pending this
appeal by the Commonwealth.
See Wolfe v. Clarke, No. 2:05-cv-
00432 (E.D. Va. Nov. 22, 2011) (the “Stay Order”). 6
We
possess
jurisdiction
pursuant to 28 U.S.C. § 1291.
over
the
Commonwealth’s
appeal
Further, because we granted Wolfe
a certificate of appealability for a cross-appeal, we have 28
U.S.C.
§§ 1291
contention
that
and
2253(c)
the
district
jurisdiction
to
court
have
should
relief on an additional, unadjudicated claim:
consider
granted
his
him
that “[e]ven if
the prosecutors had no knowledge of Barber’s perjury at the time
of trial, they do now,” and thus his continuing detention by the
Commonwealth “‘constitute[s] a due process violation.’”
See Br.
of Appellee 62-63 (quoting Sanders v. Sullivan, 863 F.2d 218,
224 (2d Cir. 1988)) (the “Sanders claim”); see also Brady Order
52 (ruling in favor of Wolfe on his Giglio, rather than Sanders,
claim, premised on the finding that the Commonwealth “presented
Barber’s
trial
testimony
despite
having
information
in
its
possession indicating that the testimony was false”).
6
The Relief Order is found at J.A. 5293-94, the Judgment at
J.A. 5295, and the Stay Order at J.A. 5407-29.
The Stay Order
is published at 819 F. Supp. 2d 574 (E.D. Va. 2011).
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As explained below, we need look no further than one item
of the first category of evidence withheld from Wolfe’s defense
by the prosecution — the evidence tending to impeach Barber —
to
agree
with
the
district
court
that
Wolfe
deserves
habeas
corpus relief on his Brady claim and affirm the Judgment.
See
Brady Order 42 (observing “that the suppressed habeas evidence
relating
to
Barber
under Brady”).
substance
evidence
or
alone
is
enough
to
warrant
habeas
relief
Consequently, we need not review any issues of
procedure
underlying
related
Wolfe’s
solely
Brady
to
claim,
the
or
other
to
withheld
his
Giglio,
Sanders, and venireman claims.
II.
A.
The
single,
impeachment
written
plainly
evidence
police
on
report
momentous
which
item
of
suppressed
we
rest
today’s
reflecting
that
—
Barber
decision
before
is
Barber
a
ever
asserted that Wolfe hired him to murder Petrole — Prince William
County Detective Newsome advised Barber that he could avoid the
death
penalty
by
“Newsome report”).
implicating
Wolfe.
See
J.A.
4825-27
(the
The Newsome report documents Newsome’s and
fellow Detective Walburn’s conversations with Barber during an
April
14,
2001
cross-country
flight,
returning
Barber
to
Virginia upon his arrest in California three weeks after the
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In pertinent part, the Newsome report reveals
the following:
I told Barber that we knew he had killed Petrole and
had a very strong case against him.
But that as far
as we knew he had no personal problem with Daniel
Petrole but that he had killed him for someone else
and we believed that person was Justin Wolfe.
I
explained to him that we needed the information that
he had in order to arrest Wolfe.
I explained again
that we had a very strong case against him (Barber)
and that we could stop there but that would not be
right since we knew it was someone else [sic] idea. I
told him that he was potentially facing a capitol
[sic] murder charge in this case and that he needed to
help himself.
He asked me, “What do I get out of it
if I tell you who the other person, the higher up,
is”. I told him I could not make any promises to him,
but that the Commonwealth might entertain the idea of
not charging him with Capitol [sic] Murder, or that
they may be willing to make a recommendation as to his
sentence.
Again Barber asked about discovery and I again
explained it to him. He then said, What do I get out
it [sic] if I name the “higher up”.
I told him that
was one of his problems; that his case was so tight he
really had very little to offer us.
I told him it
could simply be the difference between Capitol [sic]
murder or First Degree, execution or life in prison,
or that the Commonwealth may be willing to make a
recommendation in sentencing after speaking to his
attorney.
I told him again that the Commonwealth’s
Attorney would make these decisions and that I could
not promise him anything. I pointed out that at this
point he would do more good than harm for himself by
cooperating with us.
J.A. 4826-27.
The Commonwealth inexplicably withheld the Newsome report
from Wolfe until these 28 U.S.C. § 2254 proceedings in 2010,
after Wolfe’s first appeal and during the contentious discovery
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proceedings conducted in the Wolfe I remand.
report
was
Commonwealth
among
the
argued
newly
was
disclosed
outside
the
Thus, the Newsome
evidence
legitimate
that
purview
the
of
Wolfe’s Brady claim — a contention that was roundly rejected by
the
district
court
in
its
mid-evidentiary-hearing
Amendment
Order of November 12, 2010.
During the evidentiary hearing, as
recounted
subsequent
in
the
court’s
Brady
recanted his trial testimony while under oath.”
Barber
also
engaged
in
the
following
Order,
“Barber
Brady Order 50.
exchange
with
Commonwealth’s lawyer during cross-examination:
Q.
You related that several times they had said if
you don’t tell us what we want, you will get
capital murder?
A.
Yeah.
Q.
Who is they?
A.
[Commonwealth’s
Attorney]
Ebert,
[Assistant
Commonwealth’s
Attorney]
Conway,
[Barber’s
attorney]
Pickett,
[Detective]
Newsome,
[and
Detective] Walburn.
Q.
But if my notes are correct, they never told you
exactly what to say.
They didn’t give you a
script for the events of that night, did they?
A.
A specific script for the events, no.
Q.
They in fact told you what they wanted was the
truth, didn’t they?
A.
They said that they know Justin [Wolfe] is
involved and that we know that he hired you to
kill Danny [Petrole].
16
the
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Q.
Filed: 08/16/2012
Pg: 17 of 40
Well, what they told you they wanted you to tell
them was the truth. Wasn’t that their statement?
* * *
Wasn’t that their
wanted the truth?
A.
statement
to
you,
that
they
Yeah.
I mean, they said they wanted the truth,
but at the same time they said that this is what
you have got to say or you are getting the chair.
J.A. 3751-52.
foregoing
By its Brady Order, the district court found the
testimony
by
Barber
suppressed [Newsome] report.”
to
be
“consistent
See Brady Order 9 n.9.
with
the
The court
also deemed Barber’s recantation to be “credible” and generally
found his “demeanor and candor” to be “persuasive.”
Among
court’s
the
Brady
prosecution
enumerated
Order
failed
is
to
findings
the
of
fact
in
finding
(No.
6)
disclose
Detective
Id. at 50.
the
district
that
“[t]he
Newsome’s
report
outlining his initial interview with Owen Barber on April 14,
2001,
during
which
he
[Newsome]
implicated
Wolfe
as
being
involved in the murder before Barber mentioned his [Wolfe’s]
involvement.”
Brady Order 8.
The court also spelled out the
controlling legal standard for assessing Wolfe’s Brady claim,
observing that, “to find a Brady violation, it must determine
that the evidence was 1) favorable to the accused, 2) suppressed
by the prosecution (either willfully or inadvertently), and 3)
material.”
Id. at 4 (citing Banks v. Dretke, 540 U.S. 668, 691
17
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(2004)).
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Pg: 18 of 40
In concluding that the emergence of the Newsome report
entitled Wolfe to habeas corpus relief, the court explained:
This information is favorable to Wolfe because it
documents the fact that detectives first mentioned
Wolfe in connection to the murder and presented Barber
with the option of execution or life imprisonment in
exchange for implicating someone else, well before
Barber began cooperating with the Commonwealth or
implicating Wolfe in the murder.
Prosecutors do not
dispute the fact that the report was not provided to
[Wolfe].
Furthermore, the report is material because
it reflects that Barber had a motive to misrepresent
the facts regarding Petrole’s death.
Id. at 20. 7
7
In its Brady Order, the district court also assessed the
cumulative materiality of the Newsome report and the seven other
items or groups of suppressed evidence that it found favorable
to Wolfe.
See Brady Order 37-44.
The first category of that
evidence — evidence tending to impeach Barber — encompasses the
Newsome report, plus evidence that Barber possessed other
motives to murder Petrole (the “Barber-Petrole relationship
evidence”) and that Barber’s roommate, Jason Coleman, informed
the prosecution that Barber had confessed to acting alone (the
“Coleman evidence”).
See id. at 15-22.
The Barber-Petrole
relationship evidence includes statements made by confidential
informants and Barber’s fellow inmates indicating that Barber
knew Petrole before the murder, that Barber owed Petrole money,
that Petrole “had a hit out” on Barber, and that Barber had a
close relationship with Petrole’s roommate.
See id. at 15-19.
The Coleman evidence revealed that Coleman “had a conversation
with Barber after the murder where Barber admitted to [Coleman]
that he murdered Petrole and acted alone,” and that Coleman
reported that conversation to the prosecution, including the
Commonwealth’s Attorney. Id. at 20.
The second category of suppressed evidence — evidence
tending to impeach other prosecution witnesses who corroborated
Barber’s testimony — includes information relating to a deal the
Commonwealth made with its witness J.R. Martin in exchange for
his cooperation (the “Martin evidence”), as well as a recorded
statement made by the Commonwealth’s witness Jason Hough in
(Continued)
18
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B.
According
to
the
Commonwealth,
we
should
not
reach
or
address the merits of the Newsome report aspect of Wolfe’s Brady
claim, because the Newsome report would never have surfaced or
been
made
rulings
available
made
proceedings.
by
the
to
Wolfe
but
district
for
court
in
the
flawed
the
Wolfe
procedural
I
remand
In that regard, the Commonwealth asserts that the
court erred in three respects:
by generally excusing Wolfe’s
procedural defaults under the Schlup actual innocence standard;
conflict with his subsequent trial testimony regarding his prePetrole-murder conversation with Wolfe and Coleman about robbing
drug dealers (the “Hough evidence”).
See Brady Order 22-28.
Finally, the third category of withheld evidence — evidence
suggesting an alternate theory of the Petrole murder — consists
of the following:
various reports and witness statements
relating to a parallel drug investigation that indicated
conflict in Petrole’s drug business unrelated to Wolfe’s
purported motive for having Petrole murdered (the “drug
investigation evidence”); evidence that Petrole was rumored to
be a government informant, constituting yet another possible
motive for his murder (the “informant evidence”); and the
statements of three witnesses that they saw a second car at the
crime scene shortly after the Petrole murder (the “second car
evidence”). See id. at 28-36.
Having assessed the materiality of the foregoing — the
Newsome report, the Barber-Petrole relationship evidence, the
Coleman evidence, the Martin evidence, the Hough evidence, the
drug investigation evidence, the informant evidence, and the
second car evidence — the district court concluded that the
evidence’s suppression by the prosecution was, by category and
cumulatively, patently prejudicial.
While we look no further
than the Newsome report today, we do not condone the
prosecution’s apparent suppression of other Brady material and
the pattern of conduct that it reveals.
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by authorizing discovery and conducting the evidentiary hearing;
and by allowing Wolfe to amend his 28 U.S.C. § 2254 petition to
broaden his Brady claim to include the Newsome report and other
newly disclosed evidence.
We examine those assertions in turn.
1.
Attacking the Schlup Order, the Commonwealth argues that
the
district
proceedings
court
that
erred
Wolfe
by
ruling
satisfied
the
early
Schlup
in
the
actual
remand
innocence
standard on the basis of the Wolfe I record, including the 2005
affidavit
denied
in
which
Wolfe’s
Barber
recanted
involvement
in
his
the
trial
Petrole
testimony
murder.
and
The
Commonwealth emphasizes that the court, in looking at that same
record, had already decided that the Barber affidavit lacked
credibility.
See
explained
about
justify
its
any
finding
Br.
of
face
of
Appellant
and
the
‘innocence’
47
(“The
record
court
certainly
under
Schlup
never
did
not
. . . .”).
Wolfe, of course, defends the Schlup Order, asserting that “the
correctness of the district court’s findings was confirmed when
Barber recanted
his
trial
testimony
while
[post-Schlup Order] evidentiary hearing.”
under
oath
at
the
See Br. of Appellee
19-20 (internal quotation marks omitted); see also Brady Order
50 (finding Barber’s evidentiary hearing recantation “credible”
and his “demeanor and candor persuasive”).
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In any event, we need not reach or assess the parties’
competing contentions on the validity of the Schlup Order.
simply,
any
procedural
default
of
Wolfe’s
Brady
Put
claim
—
particularly as it relates to the Newsome report — was otherwise
excused under the separate “cause and prejudice” standard.
As
we explained in Wolfe I,
[a] procedural default is excusable under the cause
and
prejudice
standard
when
the
petitioner
demonstrates (1) “that some objective factor external
to the defense impeded counsel’s efforts to comply
with the State’s procedural rule,” Murray v. Carrier,
477 U.S. 478, 488 (1986), and (2) that “errors at his
trial . . . worked to his actual and substantial
disadvantage, infecting his entire trial with errors
of constitutional dimensions,” United States v. Frady,
456 U.S. 152, 170 (1982).
Wolfe I, 565 F.3d at 158 n.27 (alteration in original).
On
remand, after having decided the Schlup issue in Wolfe’s favor,
the
district
court
understandably
declined
our
Wolfe
invitation to revisit its prior cause and prejudice ruling.
id.
at
165
precedent,
n.35.
the
Nevertheless,
district
court
pursuant
necessarily
to
Supreme
found
cause
I
See
Court
and
prejudice for the Brady claim’s default when it determined that
claim
to
be
meritorious.
See
Banks,
540
U.S.
at
691
(recognizing that “‘[c]ause and prejudice’ . . . ‘parallel two
of the three components of the alleged Brady violation itself’”
(quoting Strickler v. Greene, 527 U.S. 263, 282 (1999))).
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To illustrate, as recognized by the district court, “the
three components or essential elements of a Brady prosecutorial
misconduct claim” are the following:
must
be
favorable
to
the
“‘The evidence at issue
accused,
either
because
it
is
exculpatory, or because it is impeaching; that evidence must
have
been
suppressed
by
the
State,
either
willfully
inadvertently; and prejudice must have ensued.’”
U.S.
at
691
(quoting
Strickler,
527
U.S.
at
or
Banks, 540
281-82).
By
satisfying “the second Brady component (evidence suppressed by
the State), a petitioner shows ‘cause’ when the reason for his
failure
State’s
to
develop
facts
suppression
Additionally,
(prejudice),
of
“coincident
prejudice
in
state-court
the
relevant
with
the
within
the
proceedings
evidence.”
third
compass
was
Brady
of
the
the
Id.
component
‘cause
and
prejudice’ requirement exists when the suppressed evidence is
‘material’ for Brady purposes.”
Id.
Thus, by “succeed[ing] in establishing the elements of his
[Brady] claim” — which we today affirm that he did — Wolfe
concurrently “succeed[ed] in demonstrating ‘cause and prejudice’
[for his procedural default of that claim].”
U.S.
at
691.
By
these
circumstances,
the
challenge to the Schlup Order is rendered moot.
22
See Banks, 540
Commonwealth’s
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2.
Next, the Commonwealth asserts the district court erred in
the remand proceedings by authorizing discovery and conducting
the
evidentiary
hearing.
In
rejecting
the
Commonwealth’s
position, we emphasize that the court faithfully followed our
Wolfe I directions to “re-examine whether Wolfe has shown that
he is entitled to [an evidentiary hearing],” and then, “[i]f
such a hearing is warranted,” to “resolve any factual disputes
bearing on the procedural Schlup issue and the substantive Brady
and Giglio claims.”
See Wolfe I, 565 F.3d at 170-71.
We also
observe that Wolfe I pragmatically anticipated that discovery
would be conducted in conjunction with any evidentiary hearing.
See id. at 171 n.44 (advising that, “[i]f the court determines
that Schlup is satisfied on the existing record, any evidentiary
hearing and discovery proceedings may relate primarily to the
merits of Wolfe’s substantive claims” (emphasis added)).
We
therefore conclude that, in authorizing discovery and conducting
the evidentiary hearing, the district court acted well within
its discretion.
See Schriro v. Landrigan, 550 U.S. 465, 473
(2007) (recognizing that “the decision to grant an evidentiary
hearing [in a 28 U.S.C. § 2254 case is] generally left to the
sound discretion of the district courts”); see also Conaway v.
Polk, 453 F.3d 567, 582 (4th Cir. 2006) (relating that district
court’s decision on whether to conduct evidentiary hearing or
23
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authorize
discovery
Pg: 24 of 40
proceedings
is
reviewed
for
abuse
of
discretion).
Briefly, as we more thoroughly explained in Wolfe I, 565
F.3d at 166-71, if a § 2254 petitioner “has failed to develop
the
factual
basis
of
a
claim
§ 2254(e)(2)
bars
a
district
evidentiary
hearing
on
the
in
State
court
claim
court
from
unless
satisfy one of two statutory exceptions.
the
proceedings,”
conducting
an
petitioner
can
Importantly, however,
“‘a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner’s counsel.’”
Wolfe I, 565 F.3d at 167 (quoting Williams (Michael) v. Taylor,
529 U.S. 420, 432 (2000)); see also Cullen v. Pinholster, 131 S.
Ct.
1388,
“continues
1401
to
(2011)
have
(recently
force,”
in
affirming
that
it
that
“still
§ 2254(e)(2)
restricts
the
discretion of federal habeas courts to consider new evidence
when deciding claims that were not adjudicated on the merits in
state court” (citing Michael Williams, 529 U.S. at 427-29)).
Applying the controlling standard on remand, the district
court determined that § 2254(e)(2) did “not bar [Wolfe] from an
evidentiary hearing.”
See Schlup Order 11.
In so ruling, the
court observed that Wolfe had made diligent efforts in the state
court proceedings to develop his Brady claim by “request[ing] a
hearing,”
“fil[ing]
requests
under
24
the
Virginia
Freedom
of
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Information
Act,”
occasions.”
Id.
exculpatory
and
2005
at
Pg: 25 of 40
“mov[ing]
10.
Barber
for
discovery
Moreover,
affidavit
on
on
multiple
with
respect
to
the
which
Wolfe’s
federal
habeas petition largely relied, the court found that “[t]here
[was] no indication that Barber would have been willing to give
his
affidavit
lawyers
had
at
an
earlier
repeatedly
time,
attempted
statement and he had refused.”
particularly
to
get
as
Barber
Id. at 11.
[Wolfe’s]
to
make
a
The court thus
concluded that Barber’s prior reticence was “precisely the type
of external cause that . . . excuses a failure to fully develop
facts in state court.”
(explaining
that,
Id. (citing Conaway, 453 F.3d at 589
because
petitioner
had
“been
reasonably
diligent in pursuing his claim, and his failure to fully develop
the facts related to [his] claim in state court is attributable
to
external
causes,
§ 2254(e)(2)
does
not
preclude
him
from
being accorded an evidentiary hearing in federal court”)).
Having decided that Wolfe was eligible to be accorded an
evidentiary
question
hearing,
of
whether
the
he
district
was
court
entitled
to
then
turned
one.
That
to
the
inquiry
required the court to determine “‘if the facts alleged would
entitle [Wolfe] to relief, and if he satisfie[d] one of the six
factors enumerated by the Supreme Court in Townsend v. Sain, 372
U.S. 293, 313 (1963).’”
Conaway,
453
F.3d
at
See Wolfe I, 565 F.3d at 169 (quoting
582).
Properly
25
“evaluat[ing
Wolfe’s
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petition] pursuant to the principles of Federal Rule of Civil
Procedure 12(b)(6),” see id., the court concluded that Wolfe set
forth sufficient facts to state meritorious Brady and Giglio
claims.
See
Schlup
Order
12
(observing
that
Wolfe
“alleged
serious violations of his rights,” and that those “allegations
[were] made even without the benefit of discovery that could
lead
to
considerable
additional
exculpatory
material”).
The
court also ruled that Wolfe “met at least three of the six
[Townsend] factors,” in that “‘the merits of the factual dispute
were not resolved in the state hearing’” (factor 1); “‘there is
a substantial allegation of newly discovered evidence’” (factor
4); and “‘the material facts were not adequately developed at
the
state-court
hearing’”
(factor
5).
Id.
at
12
(quoting
Townsend, 372 U.S. at 313); see also Wolfe I, 565 F.3d at 313
(observing that factors 1, 4, and 5 “appear to be applicable
here”).
Accordingly, the court granted Wolfe’s request for an
evidentiary
hearing,
as
well
as
his
motion
for
predicate
discovery.
Far from abusing its discretion, the district court engaged
in
a
sound
assessment
of
the
evidentiary
hearing
issue.
Premised on that analysis, the court also appropriately (if not
explicitly) found that Wolfe had demonstrated “good cause” for
discovery.
See Quesinberry v. Taylor, 162 F.3d 273, 279 (4th
Cir.
(“Good
1998)
cause
is
shown
26
if
the
petitioner
makes
a
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allegation
that
Pg: 27 of 40
shows
reason
to
believe
that
the
petitioner may be able to demonstrate that he is entitled to
relief.”).
obtained
As
new
a
and
result
of
relevant
the
foregoing,
evidence,
Wolfe
including
properly
the
Newsome
report, in the remand proceedings.
3.
The Commonwealth nevertheless persists in its efforts to
thwart Wolfe’s reliance on the Newsome report and other newly
disclosed
evidence,
asserting
on
appeal
that
Wolfe
was
erroneously allowed to amend the Brady claim alleged in his 2005
federal habeas petition.
district
court
of
“an
See Br. of Appellant 43 (accusing the
abuse
of
judicial
power”).
The
Commonwealth’s weak — though strident — contentions in that
respect do not long detain us.
First of all, we agree with the
district court that an amendment of Wolfe’s § 2254 petition was
not
necessary,
because
his
new
evidence-related
squarely within the [existing Brady claim].”
issues
“fall
Amendment Order 2
(specifying that Wolfe’s motion to amend was granted “merely out
of an abundance of caution”); see also J.A. 2854 (Wolfe’s 2005
federal habeas petition, broadly alleging that the Commonwealth
violated
his
“[e]xculpatory
Brady
and
rights
by
impeachment
suppressing,
evidence
Commonwealth’s key witness, Owen Barber”).
27
inter
related
to
alia,
the
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Furthermore,
we
Pg: 28 of 40
reject
the
Commonwealth’s
unfounded
depiction of “last-minute amendments far beyond the scope of
remand
[in
violation
Appellant 43.
of]
the
‘mandate
rule.’”
See
Br.
of
To the contrary, our Wolfe I mandate explicitly
authorized the district court to conduct “such other and further
proceedings as may be appropriate.”
See 565 F.3d at 171.
In
any event, it is difficult to take seriously the Commonwealth’s
protestations
years
from
tenaciously
prosecution
of
unfair
death
row
concealed
obviously
ambush,
to
by
when
obtain
the
should
Wolfe
had
evidence
Commonwealth,
have
disclosed
to
labor
that
had
and
that
prior
to
for
been
the
Wolfe’s
capital murder trial.
C.
With Wolfe’s procedural hurdles behind us, we proceed to
consider the substance of his Brady claim.
Because we focus on
an aspect of that claim — the long-concealed Newsome report —
that was not adjudicated in the state court proceedings, we owe
no 28 U.S.C. § 2254(d) deference to any state decision.
See
Monroe v. Angelone, 323 F.3d 286, 297 (4th Cir. 2003) (“[Section
2254(d)’s] deference requirement does not apply when a claim
made on federal habeas review is premised on Brady material that
has surfaced for the first time during federal proceedings.”);
see
also
Winston
v.
Pearson,
683
F.3d
489
(4th
Cir.
2012).
Rather, we review the district court’s “legal conclusions de
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novo and findings of fact for clear error.”
Monroe, 323 F.3d at
299.
1.
As previously explained, to succeed on his Brady claim,
Wolfe
is
first
“favorable
to
required
[him],
to
either
because it is impeaching.”
691
(2004)
report
is
show
(internal
the
because
it
Newsome
is
report
is
exculpatory,
or
See Banks v. Dretke, 540 U.S. 668,
quotation
indubitably
that
marks
impeaching,
omitted).
in
that
it
The
Newsome
establishes
a
motive not only for Barber to implicate someone else, but to
point the finger specifically at Wolfe.
trivialized
that
—
as
Detective
Indeed, it cannot be
Newsome’s
own
report
demonstrates — Newsome fed Barber the crux of his testimony,
i.e., that he was hired by Wolfe to murder Petrole.
the
Newsome
report
is
crucial,
impeaching
Put simply,
evidence
“unquestionably subject to disclosure under Brady.”
that
was
See Spicer
v. Roxbury Corr. Inst., 194 F.3d 547, 556 (4th Cir. 1999).
2.
Wolfe
next
must
establish
that
the
Newsome
report
was
“suppressed by the State, either willfully or inadvertently.”
See Banks, 540 U.S. at 691 (internal quotation marks omitted).
The Commonwealth did not contest the suppression issue in the
district court proceedings, and does not do so in this appeal.
Because the Commonwealth concedes that it withheld the Newsome
29
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report,
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and
because
the
Pg: 30 of 40
willfulness
or
inadvertence
of
its
transgression is inconsequential to our Brady analysis, we could
say no more on the issue.
Nevertheless, we feel compelled to
acknowledge that the Commonwealth’s suppression of the Newsome
report, as well as other apparent Brady materials, was entirely
intentional.
During Wolfe’s evidentiary hearing in the district court,
the Commonwealth’s Attorney explained that his office does not
have an “open-file policy,” providing criminal defense counsel
access
to
entire
case
files.
See
J.A.
3690.
Asked
to
elaborate, he offered the flabbergasting explanation that he has
“found in the past when you have information that is given to
certain
counsel
fabricate
a
Additionally,
and
defense
the
certain
defendants,
around
Assistant
what
is
Commonwealth’s
they
are
able
provided.”
Attorney
to
Id.
admitted
that he does not produce evidence to a criminal defendant unless
he first deems it to be “material[]” and “credib[le].”
3782.
Id. at
The district court rightly lambasted that conduct in its
Brady Order:
In effect, Ebert admits here that his contempt of
defendants who “fabricate a defense” guides his
perspective on disclosing information.
This is
particularly troubling in the case at bar where the
record is replete with statements from Ebert and
Conway
regarding
the
scrutiny
and
credibility
determinations that they made (as opposed to the jury)
regarding the relevance of any potential exculpatory
evidence. Essentially, in an effort to ensure that no
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defense would be “fabricated,” Ebert and Conway’s
actions served to deprive Wolfe of any substantive
defense in a case where his life would rest on the
jury’s verdict.
The Court finds these actions not
only unconstitutional in regards to due process, but
abhorrent to the judicial process.
Brady Order 43 n.24; see also Muhammad v. Kelly, 575 F.3d 359,
370
(4th
Cir.
2009)
(refusing
to
condone
the
suppression
of
evidence by the Prince William County prosecutors, and advising
them
to
“err
on
the
side
of
disclosure,
especially
defendant is facing the specter of execution”).
when
a
We sincerely
hope that the Commonwealth’s Attorney and his assistants have
finally taken heed of those rebukes.
3.
Of course, Wolfe is yet ineligible for § 2254 relief on his
Brady claim unless he makes a third showing — that “prejudice
. . . ensued” from the Commonwealth’s suppression of the Newsome
report.
See Banks, 540 U.S. at 691 (internal quotation marks
omitted).
The prejudice inquiry requires us to determine if the
Newsome report is “material” to Wolfe’s guilt, i.e., whether
“there
is
a
reasonable
probability
that,
had
the
[Newsome
report] been disclosed, the result of the [trial] would have
been different.”
See Cone v. Bell, 556 U.S. 449, 469-70 (2009).
Importantly, a reasonable probability does not mean that Wolfe
“would more likely than not have received a different verdict
with
the
[Newsome
report],”
only
31
that
the
likelihood
of
a
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different result is great enough to “undermine[] confidence in
the outcome of the trial.”
See Kyles v. Whitley, 514 U.S. 419,
434 (1995) (internal quotation marks omitted).
The
Commonwealth
principally
contends
that
the
Newsome
report and other Barber impeachment evidence were immaterial,
because even without Barber’s testimony that Wolfe hired him to
murder Petrole, there was overwhelming trial evidence of Wolfe’s
guilt.
Concomitantly,
the
Commonwealth
asserts
that
the
district court ignored important pieces of non-Barber evidence,
and thus improperly failed to weigh them in the Brady Order
materiality analysis.
The Commonwealth’s argument is belied by
the Brady Order, which carefully outlined the trial evidence and
came to the inevitable conclusion that “Owen Barber’s testimony
was the only evidence that the Prosecution presented to prove
that [Wolfe] hired Barber to kill Petrole.”
Brady Order 41.
Upon our own review of the trial record in the Wolfe I appeal,
we also grasped that “Barber was the prosecution’s key witness
in Wolfe’s capital trial and the only witness to provide any
direct evidence regarding the ‘for hire’ element of the murder
offense and the involvement of Wolfe therein.”
F.3d at 144.
Wolfe I, 565
And, the Commonwealth itself conceded at Barber’s
sentencing hearing on his non-capital murder conviction — where
he
received
a
sentence
of
just
sixty
years
in
prison,
with
twenty-two years suspended — that “but for [Barber’s] testimony
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Wolf[e]
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probably
would
Pg: 33 of 40
not
have
been
prosecuted.”
J.A.
5144.
In these circumstances, where “the jury had to believe that
Barber was credible and that his version of events was in fact
truthful and accurate in order to support [Wolfe’s] conviction,”
Brady
Order
manifest.
41,
See
the
materiality
Smith
v.
Cain,
of
132
the
S.
Newsome
Ct.
627,
report
630
is
(2012)
(holding that, where an eyewitness’s “testimony was the only
evidence linking [the defendant] to the crime,” the eyewitness’s
undisclosed
prior
material”);
Harris
inconsistent
v.
Lafler,
553
statements
“were
F.3d
1034
1028,
plainly
(6th
Cir.
2009) (“Considerable authority from the Supreme Court and our
court
indicates
withholding
of
that
a
defendant
favorable
suffers
impeachment
prejudice
evidence
from
when
the
the
prosecution’s case hinges on the testimony of one witness.”);
Monroe, 323 F.3d at 315-16 (explaining that, because a witness’s
testimony was “crucial” to proving premeditation, there was “a
reasonable probability that [the defendant] would not have been
convicted of first-degree murder” if evidence tending to impeach
the
witness
had
been
properly
disclosed).
Wolfe
therefore
satisfies the third and final element of his Brady claim. 8
8
We are not convinced otherwise by the Commonwealth’s
attempt to portray the Newsome report as immaterial because “the
jury knew the far more impeaching fact that Barber had . . .
(Continued)
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D.
Having confirmed that Wolfe is entitled to 28 U.S.C. § 2254
relief,
the
district
only
court
convictions,
distribute
remaining
properly
including
marijuana,
issue
before
vacated
all
his
for
conviction
which
maximum sentence of thirty years.
he
us
is
three
for
whether
of
Wolfe’s
conspiring
received
the
the
to
statutory
See Relief Order 1 (deeming
full vacatur appropriate because the Commonwealth’s “Brady and
Giglio
trial
violations
on
all
. . .
charges”).
permeated
In
the
fairness
contesting
the
of
[Wolfe’s]
court’s
vacatur
decision, the Commonwealth criticizes the court’s reliance on
Federal Rule of Civil Procedure 59(e) to amend the Judgment.
Unfortunately for the Commonwealth, the court acted well within
its discretion.
See Robinson v. Wix Filtration Corp. LLC, 599
F.3d 403, 407 (4th Cir. 2010) (explaining that “a court may
alter or amend the judgment if the movant shows[, inter alia,]
avoided the death penalty in return for his testimony.” See Br.
of Appellant 22.
Evidence that Barber got a deal for
implicating Wolfe is hardly “more impeaching” than the Newsome
report evidence that Detective Newsome specified Wolfe as the
deal-garnering
perpetrator.
Moreover,
contrary
to
the
Commonwealth’s suggestion that Barber denied being influenced by
prosecutors and police to name Wolfe, see id., Barber testified
in the district court’s evidentiary hearing that “they said they
wanted the truth, but at the same time they said that this is
what you have got to say or you are getting the chair,” J.A.
3752.
34
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that
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there
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has
been
a
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clear
error
of
law
or
a
manifest
injustice,” subject to review “under the deferential abuse of
discretion standard”).
The Commonwealth further asserts that the district court
improperly vacated Wolfe’s drug conspiracy conviction because it
was
unaffected
by
the
suppression
of
any
Brady
material.
Significantly, it is the Commonwealth’s position that the drug
conviction and attendant thirty-year sentence were secured on
the
basis
of
Wolfe’s
trial
testimony,
wherein
he
“not
only
admitted to drug dealing, but bragged about dealing on a massive
scale.”
See Br. of Appellant 57 (contending that, in light of
Wolfe’s
self-incriminating
testimony,
“[t]here
was
no
likelihood, much less a reasonable one, that Wolfe would not
have been convicted of conspiracy to distribute marijuana had
the allegedly withheld evidence about Wolfe’s part in the murder
been
disclosed”).
unrepentant
The
braggadocio
Commonwealth
was
the
emphasizes
focus
of
the
that
“Wolfe’s
Commonwealth’s
closing arguments” and “justified the Commonwealth’s call for
the maximum sentence.”
Id.
Indeed, although the Commonwealth
refers in its opening brief to “overwhelming evidence of a farreaching
drug
conspiracy,”
id.
at
58,
the
only
evidence
discussed therein with any specificity is Wolfe’s own damning
testimony.
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In response, Wolfe maintains that, in the absence of the
Newsome
report
and
other
wrongfully
suppressed
Barber
impeachment evidence, “his only option was to take the stand and
stake his word against Barber’s — an unattractive option, for as
the Commonwealth acknowledges[,] it required Wolfe to admit to
committing a felony and risk thirty years’ imprisonment.”
of Appellee 72.
Br.
According to Wolfe,
[his] lawyer would have had little reason to put
[Wolfe] on the stand if he could have put forth
another, more credible defense theory.
Instead,
Wolfe’s admission of guilt became his defense:
In
closing, Wolfe’s counsel called the jury’s attention
to Wolfe’s admission of guilt on the drug charges to
contrast it with his protestations of innocence of
murder.
The Commonwealth’s drug prosecution thus
benefited enormously from its systematic suppression
of Brady evidence.
Id.
at
72-73
(citations,
alteration,
and
internal
quotation
marks omitted).
We are entirely convinced by Wolfe’s contentions.
the
Commonwealth
central
to
because
the
testified
his
if
concedes
drug
conspiracy
Commonwealth
the
that
Newsome
Wolfe’s
trial
conviction
cannot
prove
report
had
that
not
and
testimony
was
sentence,
and
Wolfe
been
Because
would
have
suppressed,
we
agree with the district court that Wolfe is entitled to vacatur
of all three of his state convictions.
Pelullo,
105
F.3d
117,
125
(3d
Cir.
Cf. United States v.
1997)
(concluding
that,
where the government committed Brady violations that allegedly
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adduced the defendant’s trial testimony, that testimony could
not be used against the defendant at a subsequent trial unless
the
government
testified
anyway
could
prove
even
if
that
there
“the
had
defendant
been
no
would
have
constitutional
violation” (citing Harrison v. United States, 392 U.S. 219, 225
(1968) (“Having ‘released the spring’ by using the petitioner’s
unlawfully obtained confessions against him, the Government must
show that its illegal action did not induce his testimony.”))).
Of
course,
as
the
district
court’s
Judgment
reflects,
the
Commonwealth is free to retry Wolfe on the murder, firearm, and
drug conspiracy charges. 9
9
We are unwilling to mine the trial record, as our
distinguished colleague urges, to identify evidence, aside from
Wolfe’s testimony, that might sustain his drug conspiracy
conviction. The Commonwealth itself has abstained from any such
endeavor. See post at 39 (acknowledging that “the Commonwealth
did not, in its argument, greatly aid in our analysis”).
Moreover, whatever evidence exists is inevitably tainted by the
prosecutorial misconduct in this case.
By depriving Wolfe of
the Newsome report, for example, the Commonwealth not only
induced Wolfe to take the witness stand to gainsay Barber’s
trial story, but compelled the defense to abandon its challenge
to the alleged drug conspiracy in order to defend against the
death penalty offense of murder-for-hire.
With the Newsome
report in hand, Wolfe could readily have impeached Barber — as
well as, by extension, the evidence corroborating Barber’s
murder-for-hire story and implicating Wolfe in drug dealing —
with compelling evidence that the murder-for-hire story had been
planted with Barber by Detective Newsome. As such, the conduct
of the prosecution in concealing the Newsome report undermines
confidence in the fairness and propriety of the entire trial,
including
the
drug
conspiracy
conviction,
rendering
that
misconduct a sufficient independent basis for vacating each of
(Continued)
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III.
Pursuant to the foregoing, we affirm the Judgment of the
district court.
AFFIRMED
Wolfe’s convictions and for ordering his unconditional release
or retrial.
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DUNCAN, Circuit Judge, dissenting in part:
I write with regard and appreciation for the majority’s
disposition of Wolfe’s murder-for-hire and firearm convictions.
I
must,
however,
respectfully
and
narrowly
dissent
from
its
granting of habeas relief on the drug conspiracy conviction.
The record, and, significantly, the majority does not directly
refute
it,
contains
ample
evidence
from
sources
other
Wolfe’s testimony to support the drug conviction.
than
The district
court’s Relief Order does not address the merits of the drug
conspiracy issue at all, and the case on which it purports to
rely is inapposite as to that charge.
1:05-cv-00432
(E.D.
Va.
Aug.
30,
See Wolfe v. Clarke, No.
2011)
(citing
Monroe
v.
Angelone, 323 F.3d 286, 293 n.5 (4th Cir. 2003)). *
I fully recognize and appreciate the focus of the district
court
and
the
majority
on
the
more
serious
charges.
And,
indeed, the Commonwealth did not, in its argument, greatly aid
our
analysis.
exemplary.
The
Commonwealth’s
behavior
here
is
far
from
But the Newsome report cannot carry the weight the
*
In Monroe, we granted habeas relief to a petitioner
charged, as Wolfe is here, with murder and the use of a firearm
in the commission of a felony because we agreed with the
district court’s determination that the Commonwealth of Virginia
had committed Brady violations.
Unlike in Monroe, however,
Wolfe is also charged with a drug conspiracy, and nothing in
Monroe suggests habeas relief is also appropriate for a freestanding charge supported by considerable evidence free of any
Constitutional infirmity.
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majority would assign to it.
Pg: 40 of 40
Because of the amount of evidence
as to the drug conspiracy untainted by the Brady violation, I
would at the very least remand that conviction to the district
court for its specific consideration.
40